RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 October 2007
      DOCKET NUMBER:  AR20070007918


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Roland S. Venable             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 

1.  The applicant requests, in effect, that his under honorable conditions
(general) discharge be upgraded to an honorable discharge under medical
conditions.

2.  The applicant states, in effect, that his under honorable conditions
discharge did not comply with his medical condition at the time of his
discharge but due to prejudice in his unit and the commander’s refusal to
allow him to voice his concerns, he was treated unjustly.

3.  The applicant provided a copy of his DD Form 214 (Report of Separation
from Active Duty), a copy of his medical record from the Augusta Veteran
Affairs Medical Center (VAMC), and a memorandum from the VAMC dated
14 November 2006, in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Army 30 August 1974, for a period of
3 years.  He completed basic and advanced individual training and was
awarded the military occupational specialty 36K (Field Wireman).  The
highest grade he attained was private first class, pay grade E-3.

3.  On 25 September 1975, the applicant accepted NJP for causing a breach
of peace by being loud, abusive, and threatening to two Soldiers and for
being disrespectful to a noncommissioned officer.  His punishment included
a reduction to pay grade E-2, suspended for 120 days; forfeiture of $85.00,
suspended for 120 days; and 14 days extra duty.


4.  On 5 February 1976, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ) for failure to go to his appointed place of duty.  His punishment
included a reduction to pay grade E-2 and 14 days extra duty.

5.  On 12 March 1976, the applicant’s unit commander notified the applicant
that he was initiating action to separate him under the provisions of
Chapter 5-37, Army Regulation 635-200, by reason of unsatisfactory
performance with an under honorable conditions discharge.  The unit
commander based this action on the applicant’s failure to adapt, which
included two NJPs.

6.  On 15 March 1976, the separation authority directed the applicant’s
separation under the provisions of paragraph 5-37, Army Regulation 635-200,
for unsatisfactory performance and directed that he receive a General
Discharge Certificate.  On 31 March 1976, the applicant was discharged
accordingly.  The DD Form 214 issued to him at the time confirms the
applicant completed a total of 1 year, 7 months, and 1 day of creditable
active military.

7.  The applicant submitted a memorandum, medical histories and reports
from the Augusta VAMC, which shows that he was treated for schizophrenia
and post traumatic stress disorder.

8.  The applicant’s military medical records which contained a DA Form 3082
(Statement of Medical Condition), dated 4 February 1976, show that the
applicant underwent a separation medical examination and he acknowledged
that there had been no change in his medical condition.

9.  Army Regulation 635-40, paragraph 3-2b(2), provides that when a member
is being separated by reasons other than physical disability, his or her
continued performance of assigned duty commensurate with his or her rank or
grade until he or she is scheduled for separation or retirement creates a
presumption that he or she is fit.  This presumption can be overcome only
by clear and convincing evidence that he or she was unable to perform his
or her duties for a period of time or that acute grave illness or injury or
other deterioration of physical condition, occurring immediately prior to
or coincident with separation, rendered the member unfit.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the
requirements and procedures for administrative discharge of enlisted
personnel.  Chapter 5-37 of this regulation, in effect at the time,
provides for separation due to unsatisfactory performance when in the
commander’s judgment the individual will not become a satisfactory Soldier;
retention will have an adverse impact on military discipline, good order
and morale; the service member will be a disruptive influence in the
future; the basis for separation will continue or recur; and/or the ability
of the service member to perform effectively in the future, including
potential for advancement or leadership, is unlikely.  Service of Soldiers
separated because of unsatisfactory performance under this regulation will
be characterized as honorable or under honorable conditions.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct
and performance of duty for Army personnel (emphasis added), or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

12.  Army Regulation 635-200, paragraph 3-7b, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS: 

1.  Contrary to the applicant's contention, the preponderance of the
evidence shows that he did not meet the eligibility requirements for a
discharge under the provisions of Army Regulation 635-40.  There is no
evidence he was treated for an illness caused as the result of his military
service or that he met the requirements for referral to a medical
evaluation board.

2.  The applicant’s separation was accomplished in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.  The evidence of record shows he voluntarily
consented to the discharge as required by Army Regulation 635-200.

3.  The medical documents submitted by the applicant shows that he has been
treated for schizophrenia and other medical conditions.  However, there is
no correlation between these illnesses and his military service.



4.  Evidence shows that the applicant underwent a physical examination
prior to his discharge with no change in his medical condition.  Although
DVA documents refer to illnesses rated not service-connected, the applicant
has failed to provide specific information in support of his contention.

5.  The applicant has provided insufficient evidence to show his medical
problems caused the disciplinary actions that led to his separation.
Therefore, there is insufficient evidence on which to change his
administrative separation to a medical separation.

BOARD VOTE: 

________  ________  ________  GRANT FULL RELIEF  

________  ________  ________  GRANT PARTIAL RELIEF  

________  ________  ________  GRANT FORMAL HEARING 

___LDS _  ___SWF_   __RSV__  DENY APPLICATION 

BOARD DETERMINATION/RECOMMENDATION: 

The Board determined that the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.




                                       ____Linda D. Simmons_____
                                                 CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20070007918                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/10/25                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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